I’m a bit late coming to this story, and much has been written about it already. It’s not a matter of federal criminal law, but the issue here is an interesting legal question on a subject that interests me.
The background for the story is that Reid engaged in some social media commentary that included a photograph of a woman named Roslyn La Liberte from California. The photograph was taken at a June 2018 City Council meeting in Simi Valley, California on the subject of California Senate Bill 56, which would have limited cooperation by local law enforcement with federal immigration authorities. La Liberte is pictured wearing a red “MAGA hat”, and the photograph seems to depict a heated discussion that would lead you to believe she is screaming at a 14-year-old Hispanic boy who was pictured in the photograph with her.
The photo was posted by a third party on Twitter, and had a caption attached to it that read as follows:
“‘You are going to be the first deported’ [and] ‘dirty Mexican’ [w]ere some of the things they yelled they yelled [sic] at this 14 year old boy. He was defending immigrants at a rally and was shouted down. Spread this far and wide this woman needs to be put on blast.”
Reid retweeted the message on Twitter, but she also copied the photograph and then posted it separately on Instagram and Facebook. In the Instagram post, she wrote her own caption for the photograph:
He showed up to a rally to defend immigrants . . . . She showed up too, in her MAGA hat, and screamed, “You are going to be the first deported” . . . “dirty Mexican!” He is 14 years old. She is an adult. Make the picture black and white and it could be the 1950s and the desegregation of a school. Hate is real, y’all. It hasn’t even really gone away.
La Liberte sued Reid for libel. Reid had changed the original message which attributed the comments “You are going to be the first deported” and “dirty Mexican” to unidentified persons in the meeting. But when Reid put the photograph in an Instagram post, she claimed La Liberte had said the words. But La Liberte never said what Reid attributed to her, and both La Liberte and the 14-year-old boy confirm that to be true. The young boy said in a television interview that notwithstanding the momentary image captured in the photograph, La Liberte was among those trying to keep everything “civil” during the discussion.
Because La Liberte and Reid are citizens of different states, La Liberte filed her libel suit in federal court in New York. When a citizen of one state sues the citizen of a different state, they have the option of filing their suit in the federal courts of either state under what is called “diversity” jurisdiction. The purpose is to avoid a citizen of one state being forced to bring a lawsuit — or be sued in a lawsuit — in the home state courts of the citizen of a different state. Federal courts, regardless of what state they are in, are deemed to be “neutral” between parties from different states.
Even though the case is in federal court, there are no claims being made based on federal law — all the claims being made are based upon state law. Even though La Liberte was a resident of California, she chose to file her lawsuit in federal court in New York, and based her claims on New York state law, where Joy Reid lived.
When a case is in federal court on “diversity” grounds, with only state law claims being made, the federal court applies state law in deciding the case –including provisions of the relevant state law that provide defenses to the claims being made. California and New York both have what are called “Anti-SLAPP” statutes, with “SLAPP” being an acronym for “Strategic Lawsuit Against Public Participation.” A “SLAPP” suit is normally a libel and/or defamation lawsuit intended to stop the opposing party from making further public comments about the opposing party by making them at-risk for a judicial remedy or damages — an effort to “chill” their right to participation in the debate on matters of public interest.
“Anti-SLAPP” statutes are intended to deter the filing of such lawsuits by causing early judicial evaluation of the likely merits of the claims. This takes place prior to motions or discovery taking place, which can create a significant financial hardship on a less-well-off defendant. If discovery were allowed to proceed in a SLAPP action, the cost to the defendant might end up accomplishing the goal of the lawsuit — to shut them up.
On the other hand, if the court strikes the lawsuit under the “Anti-SLAPP” statute, the Plaintiff must pay the legal fees and costs of the Defendant. This acts as a deterrent to the filing of frivolous lawsuits designed to intimidate the other side into being quiet.
Where a controversy has developed — and this is the significance of the Reid lawsuit as I will explain next — is whether the procedures and standard for resolving a motion to strike filed pursuant to a state’s Anti-SLAPP statute should be applied in federal court in place of the normal procedures and standards set forth in the federal rules and statutes that apply to all cases in federal court.
La Liberte’s attorneys knew that the Ninth Circuit Court of Appeals, which is the federal circuit that includes the California federal courts, has already ruled that federal courts hearing cases under diversity jurisdiction should apply the procedures and standards of the California Anti-SLAPP statute. For La Liberte’s libel claims to survive a motion to strike under the California Anti-SLAPP statute, she would have needed to convince a federal court in California — had she filed there — that it was “probable” that she would win if the case proceeded to trial. The standard normally applied in federal courts to avoid a motion to dismiss requires only a showing by the plaintiff that his/her claims are “plausible” — i.e., not frivolous.
As noted above, La Liberte’s attorneys filed her case in federal court in New York because the Second Circuit Court of Appeals, which covers New York federal courts, had not taken a position yet on whether state law and procedures on Anti-SLAPP statutes should apply rather than normal federal rules on motions to dismiss.
La Liberte lost her case in the district court. The district court judge ruled that La Liberte made herself a “limited-purpose public figure” by involving herself in the controversy surrounding the debate over immigration in 2018, and as such she would need to prove that Reid acted with “actual malice” towards her when she changed the caption in her Instagram post to say that La Liberte had made the offending remarks. Because she would be unable to prove that at trial, the district court judge ruled in Reid’s favor and dismissed the case. The district court judge awarded attorneys’ fees and costs to Reid under New York’s Anti-SLAPP statute, and La Liberte appealed.
Earlier this week the Second Circuit ruled in favor of La Liberte. The ruling has been covered by some merely on the issue that the Second Circuit reversed on the grounds that by merely participating in a public debate La Liberte did not make herself into a “limited-purpose public figure”, and the “actual malice” standard for public figures doesn’t benefit Reid. All La Liberte needs to prove against Reid is that her actions in labeling Reid were “negligent.”
Other reporting has noted that Reid’s simple retweet of the original social media post on Twitter was covered by Section 230 of the Communications Decency Act, which protects Reid from the simple act of repeating words of others in the form of a retweet when the original words were not her own. These are obvious points of the ruling if you only consider the merits of the case as between La Liberte and Reid.
But the real significance in the ruling is that the Second Circuit held that the Federal Rules of Civil Procedure, and not the New York Anti-SLAPP statute, govern the manner in which a motion to strike a lawsuit under the Ant-SLAPP statute is decided. Many large media companies had filed an amicus brief in the case, urging the Second Circuit to apply the Anti-SLAPP statute’s protections for the benefit of Reid.
All media and journalists working out of the New York City metro area are now subject to being sued in New York federal courts by citizens in other states, and for those lawsuits to survive a motion to dismiss, the plaintiffs need only show that their claims are “plausible.” In the era of social media, this means many more claims will survive efforts by media personalities and their employers to dismiss them at an early stage under the Anti-SLAPP statute, and then recover attorneys’ fees and costs from the unsuccessful plaintiff. More lawsuits will now proceed to discovery, with media personalities likely subjected to depositions where their history of online commentary can be explored under oath.
This is a huge loss for big media. With a split among the federal circuits on the question, it is also an issue that is likely to result in the Supreme Court taking the question up at some point to create a uniform rule nationwide. Judge Thomas has, for some time, called into question the entirety of federal case law that provides protection from state libel laws on constitutional grounds which he argues were made up from whole-cloth by Justice Brennan in his landmark opinion deciding New York Times v. Sullivan.
It is generally the more “conservative” view that federal rules of procedure should govern the decision-making procedures of cases in federal court, and those procedures cannot be altered by state statutes.